Illinois Appellate Court Affirms Dismissal of Wrongful Death Claim for the Expiration of the Statute of Limitations on Negligence

On April 21, 2011, Gail Osten had a screening mammogram. The “technologist” at the screening noticed a slightly inverted left nipple and a brown discharge, which Osten had not noticed before.

The mammogram revealed bilateral benign calcification and no other masses or malignancy. No further tests were ordered. In December 2011, she was diagnosed with breast cancer. She died on March 19, 2015.

Joseph Osten alleged professional negligence and wrongful death for their combined failure to convert the screening mammogram to a diagnostic mammography, choosing not to perform an ultrasound and failing to recognize the risk factors for breast cancer based on their lack of action in April 2011. There was no contact with her after that date.

The defendants moved to dismiss, arguing that the claims were timed-barred by the two-year statute of limitations and the four-year statute of repose laid out in Section 13-212 of the Illinois Code of Civil Procedure for medical negligence.

The defendants argued that the four-year repose period for medical negligence began tolling on the April 21, 2011 screening and, therefore, lapsed on April 21, 2015.

The defendants noted that, given this date for the negligence, the two-year statute of limitations for wrongful death had lapsed prior to Osten’s death in March 2015.
The trial court granted dismissal. Osten appealed.

In the appeal, the Osten estate argued that the complaint was timely as it was filed within two years of the discovery of the defendants’ negligence. Osten also argued that the repose period did not begin to run until his wife died, at which point “defendants’ treatment of Gail ended.” Osten finally argued there remained a question of fact as to when he should have known about defendants’ negligence, which should defeat a motion to dismiss.

Unfortunately, the appellate court disagreed with the Osten arguments. The court emphasized that in a wrongful-death action, the “wrongful act … causing death” is the cause of action, not the death itself, and that if the decedent did not have a cause of action at the time of death, the death does not create a wrongful-death right of action.

The Illinois Appellate Court cited the Illinois Supreme Court holding that Section 13-212(a) of the Illinois Code of Civil Procedure controls wrongful-death claims premised on medical negligence. It states that “in no event shall such action be brought more than [four] years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

In this case, Osten filed suit in 2017, almost six years after the alleged negligent treatment. The appellate court emphasized that he failed to allege any facts establishing that his wife was treated by Northwestern or any other of the defendants after April 21, 2011.

In the appellate brief filed on behalf of Osten, it was asserted that the defendants’ treatment was “continuous until the date of her death on March 19, 2015,” but failed to cite anything in the record to support this assertion.

The appellate court noted that this was because the record did not contain any support, that these “facts” about her continuous treatment was asserted for the first time on appeal. Moreover, even this fact fails to establish any negligent treatment other than that occurring on April 21, 2011. Accordingly, the appellate court affirmed the trial court’s dismissal of the cause of action based on the lapsing of the statute of limitations.

We serve the following localities: Cook County including Arlington Heights, Barrington, Berwyn Township, Chicago, Des Plaines, Glenview, Orland Park, Palos Park, Schaumburg, and Tinley Park; DuPage County including Downers Grove, Naperville, and Bolingbrook; Kane County including Aurora, Elgin and Geneva; Lake County including Waukegan; and Will County including Joliet.